NATIONAL COURT OF JUSTICE

ENFORCEMENT PURSUANT TO CONSTITUTION SECTION 57; and
APPLICATION BY DANIEL DON KAPI

Waigani: Gavara-Nanu J
3 August 2002

CONSTITUTION – Constitution, s.157 - Application to enforce right –Right can only be enforced, if application is made according to law. 

ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS ('the Organic Law') – Sections 4 and 206 of the Organic Law complement each other and are to be read together. 

ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS ss. 18,19 and 20 – Powers and functions of the Returning Officers – The Returning Officers exercise powers delegated to them by the Electoral Commissioner – The Electoral Commissioner therefore has overriding powers over such delegated powers.

Facts

The applicant stood for the Wabag Open Electorate in the 2002 National Elections. On 24 July 2002, the returning officer for the Wabag Open Electorate declared the applicant as the duly elected member for Wabag Open. However, on 1 August 2002, the Electoral Commissioner declared Mr. Sam Abal as the duly elected member for Wabag Open. The applicant seeks to restrain Mr. Sam Abal from taking office as the member for Wabag Open.

Held

1.	The returning officer being the delegate of the Electoral Commissioner is required to seek direction from the Electoral Commissioner where there are some serious doubts about the results of an election.

2.	The declaration made by the returning officer without consulting the Electoral Commissioner in light of the anomalies in the number of ballot boxes and the destruction of several ballot boxes is null and void and of no effect. 

Papua New Guinea cases cited

Application by Anderson Agiru (2002) unreported N2231.
Avia Aihi v The State (No.1) [1981] PNGLR 81.

Counsel

A Manase, for applicant.
L Henao, for Parliament.
Z Gelu, for the State. 
A Kongri, for the Electoral Commission. 
S Abal, in person.

3 August 2002

Gavara-Nanu J. The applicant makes this application pursuant to s 57 of the Constitution to enforce his right, under s 50 of the Constitution. Section 50 among other things, relates to the right to stand for public office.

The applicant was declared on 24 July 2002, in Wabag by the Returning Officer, Mr. Kwadogi, as the duly elected member for the Wabag Open Electorate. Then on 1 August 2002, the Electoral Commissioner made another declaration in which Mr. Sam Abal was declared as the elected member for the same electorate.

According to Mr. Kwadogi's affidavit which he swore on 3 August 2002, he only counted 34 ballot boxes, when he made the declaration. He says, there were 30 more boxes to be counted, but he did not count them because they were tampered with. Mr. Kwadogi has not explained as to how the boxes were tampered with. He also says, 8 other ballot boxes were destroyed by fire when they were in the Wabag Police Station.

The applicant is asking this Court to restrain Mr. Abal from taking his seat on Monday 5 August, 2000, when the Parliament is scheduled to sit. The purpose of the relief order sought is so that, the Supreme Court can then decide as to whether Mr. Kapi or Mr. Abal was legally declared.

Mr. Manase, argued that this recourse is appropriate because there are now two declared members for the same electorate. The other reason is that, the declaration of Mr. Abal may be invalid because, it was made after the date of the return of the writ for Wabag Open, which is 29 July, 2002. Furthermore, the writ had already been returned when Mr. Abal was declared. Therefore, the issue of who is the duly elected member for Wabag Open Electorate should be decided by the Supreme Court.

In my opinion, the application by Mr. Kapi in essence challenges the validity of Mr. Abal's election. Therefore the issues raised in the application are matters which should be raised before a Court of Disputed Returns, through an election petition under s 206 of the Organic Law on National and Local – Level Government elections (hereinafter referred to as 'the Organic Law'). That avenue of course is still open to Mr. Kapi.

Section 206 of the Organic Law provides:
"206. Method of disputing returns

The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise. (my emphasis)

This section has to be read together with Section 4, which provides:

"4. Reference of certain questions to National Court
Any question as to whether a person has been validly elected as a member of the Parliament or whether the seat of a member has become vacant shall be determined by the National Court." (my emphasis).

It is clear from Mr. Kwadogi's affidavit that, he made his declaration of Mr Kapi under controversial circumstances, because there were still 30 boxes to be counted, but because the boxes had been tampered with, he did not count them. He said there was fighting "every where in the counting room" and the situation was tense, and his personal safety was under serious threat. He, therefore, proceeded to the Provincial Administrator's office and declared for Mr. Kapi who was leading by 637 votes from his nearest rival.

There is no evidence from Mr. Kwadogi that he consulted the Electoral Commissioner before making the declaration. In this regard, he may have acted outside of his powers, when he made the declaration; because in my opinion, in such controversial circumstance, he should have consulted the Electoral Commissioner before making the declaration.

Sections 18, 19 and 20 of the Organic Law make it clear that, the Returning Officers can exercise some powers of the Electoral Commissioner. They do not have independent powers from the Electoral Commissioner. Their powers are delegated to them by the Electoral Commissioner.

Sections 18, 19 and 20 of the Organic Law provide:

"18.	Delegation

(1)	The Electoral Commission may, by instrument in writing, delegate to an officer all or any of its powers and functions under this Law (except this power of delegation and any prescribed power and function), so that the delegated powers or functions may be had, exercised and performed by the delegate in relation to such electorate or electorates, or to such matters or class of matters, or to the whole of the country or such part of the country, as is specified in the instrument of delegation.

(2)	Every delegation under Subsection (1) is revocable, in writing, at will.

(3)	No delegation under this section prevents the exercise or performance of a power or function by the Electoral Commission." (my emphasis).

19.	Returning officers

(1)	The Electoral Commission shall, by notice in the National Gazette, appoint a Returning Officer for each electorate, who shall be charged with the duty of giving effect to this Law within or for his electorate, subject to any directions of the Electoral Commission. (my emphasis).

20.	Assistant Returning Officer

(1)	Subject to this section, the Electoral Commission may, by notice published in the National Gazette, appoint a person to be an Assistant Returning Officer for a portion of an electorate.

(2)	A person appointed to be an Assistant Returning Officer for a portion of an electorate may, subject to the Law and to the Regulations and to the control of the Returning Officer, perform the functions and exercise the powers of the Returning Officer, in, or in relation to, that portion of the electorate.

(3)	An Assistant Returning Officer shall not be appointed for a portion of an electorate for which less than 100 electors are enrolled.

(4)	Where the services of an Assistant Returning Officer are required for the purposes of one election only, the appointment may be made by the Returning Officer by instrument in writing, and in that case the appointment terminates upon the completion of the election. (my emphasis).

Under the Organic Law, the Electoral Commission is the Electoral Commissioner, because s 5(2) states:

"The Electoral Commission shall consist of the Electoral Commissioner."

In the premises, there is a serious doubt on the legality of Mr. Kwadogi's declaration of Mr. Kapi, without consulting the Electoral Commissioner. The Electoral Commissioner on the other hand has seen fit to declare Mr. Abal as the duly elected member for Wabag Open electorate.

In my opinion, the declaration of Mr. Abal, by the Electoral Commissioner, must prevail over Mr. Kapi's declaration by Mr. Kwadogi, and it should not be interfered with by this Court. 

The decision by the Electoral Commissioner to declare Mr. Abal, was made deliberately under the overriding powers given to him by the Organic Law. Therefore, his declaration must override the applicant's declaration, made by the Returning Officer, Mr. Kwadogi. Here, I am not deciding the legality of Mr. Abal's declaration by the Electoral Commissioner, because that is an issue which can only be decided by the Court of Disputed Returns. In this regard, Mr. Abal's declaration is presumed to have been properly and regularly made, until it is declared otherwise by the Court of Disputed Returns through an election petition.

Applications under s 57 of the Constitution must be made according to law, before the rights can be enforced. See Avia Aihi v The State [1981] PNGLR 81 at p 106. See also, Application by Anderson Agiru (2002) unreported N2231, at page 8. In this case, the application stands to offend against the provisions of ss 4, 18, 19, 20 and 206 of the Organic Law. 

There is another reason why I cannot grant the Orders sought by the applicant. The purpose and the intention of the Organic Law is that, every electorate be represented by the elected representative of that electorate, when the Parliament meets on Monday 05 August, 2002. Therefore, having been declared as the elected member for the Wabag Open Electorate by the Electoral Commissioner, it is Mr. Abal's right under s 50 of the Constitution to take his seat in the Parliament when it sits on Monday, 5 August 2002.

The application is therefore dismissed.

Lawyer for the applicant: Pato Lawyers.
Lawyer for the Parliament: Henaos Lawyers.
Lawyer for the State: Solicitor General.
Lawyer for the Electoral Commission: Nonggorr and Associates Lawyers.
Lawyer for Sam Abal: In person.